New Federal EEOC Workplace Harassment Guidelines and Employer Liability

In October 2023, the Equal Employment Opportunity Commission (EEOC) published new draft guidelines on workplace harassment. The new document, called Proposed Enforcement Guidance on Harassment in the Workplace, is the first official EEOC guidance since 1999. This 144-page draft is a gold mine for HR Managers. It is an encyclopedia of information about best practices relating to employment laws, discrimination charges, sex discrimination, sexual harassment, race discrimination, employer responsibility, and employer liability.

This proposed new EEOC guidance compiles 24 years of legal precedent. It provides examples of how these principles should be applied to workplaces re-shaped by the #MeToo movement, the COVID-19 pandemic, the overturning of Roe v. Wade, and the U.S. Supreme Court’s Bostock decision. In addition, the draft guidelines contain 13 detailed, footnoted examples (Examples 27-40) of situations in which employers might find themselves legally responsible for the actions of employees, contractors, and others.

Kilgore & Kilgore Employment Guidance

Guarding an employer from legal liability is among an HR manager’s top tasks. Now is the time to become familiar with the proposed guidance and to evaluate existing workplace policies and employment guidelines. It is not too early to seek Kilgore & Kilgore employment guidance from their experienced team of lawyers.

Title VII and EEOC Workplace Harassment Guidelines

Title VII of the Civil Rights Act of 1964 protects job applicants and employees from employment discrimination based on race, color, religion, sex, or national origin. In 1986, the U.S. Supreme Court in Meritor Savings Bank v. Vinson, held that workplace harassment can constitute unlawful discrimination under Title VII.

Although many high-profile cases involve harassment based on sex, race, or national origin, the EEOC also enforces laws prohibiting work-related harassment based on color, religion, disability, genetic information, and age (collectively known as EEO laws). Notwithstanding enforcement efforts, many workers still experience illegal workplace harassment. Texas consistently accounts for roughly ten percent of the total workplace discrimination charges in the U.S.

LGBTQ+ Harassment Addressed in the New Guidelines

The U. S. Supreme Court’s 2020 Bostock decision clarified that prohibited workplace sex discrimination includes bias on the basis of gender identity and sexual orientation.

  • Example 4 in the proposed guidance document makes it clear that refusing to use an employee’s preferred name or pronoun may constitute sexual harassment.
  • The EEOC has also taken the position that employers are prohibited from denying employees equal access to a bathroom, locker, and/or shower that corresponds with their gender identity.
  • The draft guidance states that employers are prohibited from firing, refusing to hire, or taking assignments away from someone because customers or clients prefer to collaborate with an individual who has a different sexual orientation or gender identity.
  • Example 9 in the proposed guidance document explores the use of derogatory epithets based on sexual stereotyping. In that example, Eric, an iron worker, alleged that he was subjected to harassment based on his supervisor’s perception that he was feminine. Such harassment included being called pu__y, princess, and fa___t, often several times a day.
  • The EEOC has also taken the position that religious accommodations for employees with sincerely held religious beliefs do not include allowing that employee to create a hostile work environment for an LGBTQ+ coworker.

Online Harassment in the New EEOC Harassment Guidelines

Most employers are already painfully aware of the alcohol-fueled harassment potential of the holiday party, even if held offsite. The proposed guidance goes further to emphasize that conduct occurring within a virtual work environment or via private social media communications can also amount to actionable harassment.

Following Example 23, the proposed guidance notes that “conduct within a virtual environment can contribute to an actionable hostile work environment. This can include sexist comments made during a video meeting, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.”

The EEOC guidance also notes that employers may be liable for online harassment, even if that harassment occurs only over the employee’s private social media accounts. Example 25 relates the story of a black employee exposed to an offensive post on Instagram. In the post, two of the black employee’s co-workers included images of the employee juxtaposed with an image of the fictional ape Cornelius from the movie The Planet of the Apes, along with text explicitly comparing her to Cornelius. This also amounts to legally actionable race discrimination in employment.

Pregnancy-Based Harassment Involving Reproductive Decisions

The draft guidance notes that sex-based harassment includes mistreatment based on an employee’s pregnancy and reproductive choices, including decisions about contraception, abortion and, presumably, the choice to have and care for children. Employed mothers who are breast feeding will no longer need to pump in a cold bathroom stall. 

Consider Example 37: “Malak, a server at a sports bar, is visibly pregnant. Every Sunday, Kevin and Troy spend the afternoon at the bar cheering on their favorite football team, and they usually sit in Malak’s section. They repeatedly ask if they can rub her belly ‘for luck’ before games, and berate her when she refuses, calling her a ‘mean mama.’ They also frequently make beeping sounds and yell, ‘Careful! Wide Load!’ when Malak serves other tables. In addition, they ask if she plans to breastfeed and offer ‘to help with practice sessions.’” A manager, Sven, makes only halfhearted efforts to mitigate the situation. According to this illustration and based on these fictional facts, the employer has failed to take reasonable corrective action to address Kevin and Troy’s pregnancy-based harassment of Malak.

Employer Responsibility, Employer Liability – A Wide Net of Responsibility

The EEOC’s new guidance breaks the complicated issue of legally prohibited harassment into three questions:

  • Was the conduct based on the individual’s legally protected characteristic under the federal EEO laws?
  • Did the harassing conduct result in discrimination with respect to a term, condition, or privilege of employment?
  • Is there a basis for holding the employer liable for the conduct?

Employer Liability and the New EEOC Harassment Guidelines

Not every stupid, boorish, and juvenile employee misbehavior ends in employer liability. If Fred and Frank fight over the real or perceived misappropriation of a romantic partner – that is not a legally protected characteristic. If Felicity says something crude about race to a close non-work friend that had no consequences with respect to the maligned worker’s employment, the incident may not rise to the level of prohibited discrimination. If an employer neither knew nor had reason to know about Felix’s racist/ageist/sexist misbehavior last Thanksgiving, then there may be no basis for holding the employer legally responsible.

On the other hand, Part IV of the proposed EEOC guidance casts a very wide net of liability. If the conduct meets the first two criteria, whether the employer is legally liable will depend on the role of the harasser. Is the harasser:

  • the alter ego or proxy for the employer?
  • a supervisor?
  • a colleague or non-employee?

The legal theories and kinds of proof required in each category are different. For HR purposes, however, it may be enough to recognize that liability is possible in each situation.

Contact Kilgore & Kilgore For Employment Guidance

To learn more about recent changes in sexual harassment cases, click here Forced Arbitration. To read about sexual harassment cases in Texas, click here Texas law. For a general overview of Kilgore Law’s employment practice click this link Protect Your Dignity. Click here to get the conversation started contact Kilgore & Kilgore. Or call us at (214) 949-9099. We are here to help you.

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